Vol. 11, No. 18	Covering Cases Published in the Advance Sheets through May 3, 2004

Supreme Court

• In Thornton, by a vote of 7-to-2, the Supreme Court strengthened the power of the police to conduct a warrantless search of a car after arresting the driver. Over the dissent of Justices Stevens and Souter, the majority held that the police may search a parked car if they have recently made a lawful arrest of its driver nearby, even when the officer does not make contact with the person arrested until he has left his vehicle. The rationale of the majority’s ruling was to allow the police to protect themselves and ensure their safety; although Justice Scalia (who concurred on different grounds) noted that, by the time the instant search took place, the defendant was already handcuffed and locked in a police cruiser - a fact, he contended, that “stretches [our current doctrine] beyond its breaking point.”
  
  
• In Nelson, the Court held that an action pursuant to 42 U.S.C. § 1983, rather than a habeas petition, is the appropriate vehicle to bring an Eighth Amendment claim challenging a medical procedure and seeking a temporary stay and permanent injunctive relief - since that claim does not fall within the core concerns of a habeas petition that challenge the fact of a conviction or the duration of a sentence.
  

Guidelines - Departure Based on Physical Condition Affirmed

• In Martin, the First Circuit upheld a downward departure based on the defendant’s “extremely fragile” physical condition, after concluding that the BOP would be unable to adequately meet the defendant’s medical needs. To treat his condition, the defendant was required to take daily injections of Demerol. The BOP advised the Probation Department that, despite Demerol’s proven success in treating the defendant, the BOP would not administer Demerol to the defendant as a matter of principal since it considered that drug a narcotic and a controlled substance.
  

Counsel Held Ineffective For Not Objecting to Inclusionof Drugs Held for Personal Consumption

• In Jansen, the Third Circuit joined with at least five other Circuits (the Second, Sixth, Seventh, Eighth and Ninth) in holding that drugs possessed for mere personal use are not relevant to the crime of possession with intent to distribute and should not enter into the base offense level computation as relevant conduct under U.S.S.G. 1B1.3.

Drug Importation Conviction Vacated Because Evidence Did Not Satisfy the Best Evidence Rule

• The Bennett case from the Ninth Circuit is noted for its informative discussion of the “best evidence rule” contained in Fed.R.Evid. 1002. In this case, the court vacated a drug importation conviction after finding that a U.S. Customs officer’s expert testimony about a global positioning system (GPS) report that allegedly “backtracked” the course of the defendant’s boat and placed him in Mexican waters did not satisfy the “best evidence rule.”

U.S. v. Martin, 363 F.3d 25 (1st Cir. 2004) (Judge Lipez)

Defendant Daniel Martin pled guilty to fraud and tax evasion arising out of his participation in a scheme to defraud several food distributors and a supermarket chain of more than $1.8 million. District Judge Keenan of the D.Mass. sentenced Martin to three years of probation, with six months to be served in home detention. The Government, believing that the sentence was far too lenient, appealed; and it argued that the district court had committed a number of errors.

The First Circuit agreed that the district court had erred by improperly grouping the fraud counts and the tax evasion counts, and by improperly granting a downward departure for extraordinary acceptance of responsibility; and thus it vacated the sentence and remanded for resentencing on those issues.

Of particular note, however, the Court also rejected the Government’s opposition to a downward departure based on Martin’s physical condition, pursuant to U.S.S.G. § 5H1.4. Under that Guideline provision, the physical condition of a defendant “is not ordinarily relevant” to his or her sentencing; and thus, in the nomenclature of the Guidelines, a defendant’s health is deemed to be a “discouraged” basis for a departure.

Because Martin suffered from several serious ailments, the Court found that his health was “exceptionally fragile.” (Id., at 50). It noted for example that, for more than 30 years, Martin had suffered from Crohn’s disease, “a malady of the small intestine that can cause periodic episodes of obstruction and acute abdominal pain.” (Id., at 49). The Court noted that if such episodes are not treated “almost immediately, they can lead to hospitalization and potentially catastrophic surgery.” (Id.) The Court then explained:

“Injection with the narcotic Demerol, which Martin uses for its anti-spasmodic properties, is the only treatment that has successfully combated these attacks. Martin submitted a letter from his gastroenterologist of 31 years stating that "lesser antispasmodics have not been effective. Should this medication [Demerol] not be available to him, he may well progress to full blown small bowel obstruction over the space of 6-12 hours requiring treatment with intravenous fluids . . . and conceivably urgent surgery." The record indicated that the Bureau of Prisons (BOP) would not administer Demerol to Martin during his incarceration [because it is a narcotic and a controlled substance], putting him at risk for a severe episode.” (Id.)

The Court then held that, although a defendant’s physical condition is a discouraged factor under the Guidelines, "an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range. . . . A court may find such an extraordinary impairment when imprisonment would threaten or shorten a defendant's life or when the Bureau of Prisons would be unable to adequately meet the defendant's medical needs.” (Id., at 49, citing principally U.S. v. LeBlanc, 24 F.3d 340, 348-49 (1st Cir. 1999)).

Based on those factual findings and legal conclusions, the Court emphatically stated:

“[W]e are not convinced that the BOP can adequately provide for Martin's medical needs during an extended prison term. There is a high probability that lengthy incarceration will shorten Martin's life span. . . . Thus the district court did not err in departing three levels based on the discouraged factor of extraordinary physical impairment.” (Id., at 50).

It should also be noted, however, that the Court also emphasized that it was “not suggesting that a period of incarceration would be inappropriate” and that, where an extraordinary physical impairment is shown to exist, “a sentencing court is not faced with an all-or-nothing choice between GSR-range imprisonment or no imprisonment, but may lawfully decide to impose a reduced prison sentence below the GSR." (Id., at 51).

Jansen v. U.S., No. 02-3415 (3rd Cir. 05/21/2004) (Judge Debevoise)

Robert Jansen, the appellant/inmate in this case, filed a petition for habeas corpus pursuant to 28 U.S.C. § 2255, alleging that his trial counsel was ineffective for failing to argue at sentencing that the amount of drugs in his possession intended for personal use should not have been included in the base offense level calculation. After the district court denied his petition, Jansen appealed to the Third Circuit, which reversed.

Jansen was the passenger in a car that was stopped on a highway by Pennsylvania State troopers, based on an informant’s tip that the occupants were carrying drugs. A search of the car revealed 448 grams of cocaine hidden in a VCR which was found on the rear floor of the car. In addition, the police retrieved a plastic bag from Jansen’s groin area which contained 34.2 grams of cocaine and 16.3 grams of crack cocaine. During cross-examination, Jansen also admitted that he had possessed for distribution approximately 50 ounces of cocaine from previous trips.

Added up, those quantities of drugs, when converted to marijuana equivalents, yielded a total weight of 705 kilograms of marijuana and an offense level of 30. At Jansen’s criminal history of III, his sentencing range was 121 to 151 months. Jansen was sentenced to 121 months in prison.

If the 34.2 grams of cocaine and the 16.3 grams of crack cocaine found hidden on Jansen’s person had been excluded from the computation of drug quantities attributable him for sentencing purposes, the total weight of the drugs, expressed in their marijuana equivalent, would have been 373 kilograms - which produced an offense level of 26 and a sentencing range of 78 to 97 months.

At the time of Jensen’s sentencing, only two Circuits (the Seventh and the Ninth) had ruled that drugs possessed for personal use may not be included in calculating a Guideline sentence for possession with intent to distribute under U.S.S.G. § 2D1.1. However, Jensen’s counsel failed to argue that the drugs found in Jensen’s pants were for personal use and should not be counted in computing Jensen’s offense level.

By the time Jensen filed for habeas relief, two additional Circuits (the Second and the Eighth) had adopted a similar rule; and subsequently the Sixth Circuit adopted that same position.

Based on those factors, the Third Circuit concluded that “despite a strong presumption that counsel’s performance was reasonable, that presumption is overcome here. . . . The decisions [from the Seventh and Ninth Circuits] were readily available to him. Nor can any considered sound strategy be discerned for failing to raise the personal use issue. . . . . Even a small reduction in the quantity of drugs entering into the base offense level computation would have placed defendant in a less than 700 to 1,000 kilogram range.”

Accordingly, the Court reversed the sentence and remanded the case for a determination of the amount of drugs, if any, that the inmate possessed for personal use and, if appropriate, for recomputation of his base offense level.

Crawford v. Washington - Revisited

Through the kind courtesy of New York attorney Richard Ware Levitt, Esq. and the New York State Association of Criminal Defense Lawyers, we have posted a copy of Mr. Levitt's recent column (that was published in the May/June edition of the NYSACDL’s newsletter, the Mouthpiece). In his column, Mr. Levitt presented a discerning analysis of the Supreme Court's recent decision in Crawford v. Washington, 124 S.Ct. 1354 (2004) (P&J, 02/16/04).

As we are all beginning to understand, Crawford has dramatically changed the legal landscape on the admissibility of "testimonial hearsay" under the Confrontation Clause; and it overruled long-standing precedent from many Circuits on that issue. Mr. Levitt's article helps the criminal defense practitioner understand the scope and the direction of the many changes that can be expected to flow from Crawford.

Copyright © 2004 Punch and Jurists, Ltd.